A PUBLICATION OF THE SILHA CENTER FOR THE STUDY OF MEDIA ETHICS AND LAW | FALL 2019 D.C. Circuit Upholds Net Neutrality Repeal But Prevents the FCC from Preempting States’ Rules, Remands Key Issues to the Agency n Oct. 1, 2019, the U.S. Court of Appeals for the D.C. general and the attorney general of Washington, D.C., as well as Circuit released a per curiam opinion upholding multiple technology and internet companies. The lawsuits were the Federal Communication Commission’s (FCC) consolidated into one case on March 12, 2018. Meanwhile, on December 2017 repeal of the net neutrality rules, Nov. 5, 2018, the U.S. Supreme Court denied certiorari to review holding that the FCC had the authority to do so and an earlier challenge to the FCC’s authority to implement net Othat the agency had been reasonable in its approach. Mozilla neutrality rules. U.S. Telecom Assoc. v. Fed. Comm. Comm’n, Corp. v. Federal Communications Commission, 940 F.3d 1 825 F.3d 674 (D.C. Cir. 2016) (cert. denied), 139 S. Ct. 454 (2018). (D.C. Cir. 2019). However, the court vacated the portion of the Additionally, several states took different actions related to repeal that would have allowed the FCC to prohibit states from net neutrality. For example, on Sept. 30, 2018, California Gov. drafting their own net neutrality regulations. The D.C. Circuit Jerry Brown signed into law SB 822, the “California Internet also remanded several issues to the FCC, including requiring the Consumer Protection and Net Neutrality Act of 2018,” which agency to assess the rollback’s effect on public safety. enacted net neutrality rules similar to those in the 2015 Order. Net neutrality is the principle that Internet Service Providers However, on the same day, the U.S. Department of Justice (DOJ) (ISPs) should treat all data on the internet the same, regardless fi led a lawsuit in the U.S. District Court for the Eastern District of the source. In February 2015, the FCC adopted the 2015 of California to block the California law from going into effect Open Internet Order, which reclassifi ed broadband internet on Jan. 1, 2019, arguing California lacked suffi cient authority to access as a “telecommunications service” under Title II of regulate ISPs. On October 26, California Attorney General Xavier the Communications Act. 80 Fed. Reg. 19,738 (Apr. 13, 2015) Becerra and the DOJ agreed to postpone litigation pending the (codifi ed at 47 C.F.R. 1). This action provided the FCC the Mozilla ruling. As the Bulletin went to press, it remained unclear authority to regulate ISPs, including through three “bright-line” whether the California law would take effect. rules, which prohibited ISPs from (1) blocking lawful internet (For more information on the background of net neutrality, content, (2) slowing down the speed of content delivery for the lawsuits fi led after the Restoring Internet Freedom Order, specifi c applications or services, a practice known as throttling, and additional legislative and legal efforts to implement net and (3) paid prioritization, which would allow ISPs to favor some neutrality rules in different states, see “Repeal of Net Neutrality internet traffi c over others. Rules Continues to Face Legal Uncertainty” in the Fall 2018 On June 14, 2016, the D.C. Circuit upheld the Open Internet issue of the Silha Bulletin, “FCC Repeal of Net Neutrality Takes Order in a 2-1 decision, ruling that the FCC had the authority to Effect, Faces Continued Legal and Legislative Opposition” in implement the Order and that ISPs should provide equal access the Summer 2018 issue, “FCC Repeals Net Neutrality, Prompts to all users. U.S. Telecom Association v. Fed. Comm. Comm’n, Legal Action and Legislation” in the Winter/Spring 2018 issue, 825 F.3d 674 (D.C. Cir. 2016). However, on Dec. 14, 2017, the “D.C. Circuit Upholds ‘Net Neutrality’ Rules” in the Summer 2016 FCC voted 3-2 to repeal its net neutrality rules in an Order issue, “New FCC Rules Spur Heated Debate about Net Neutrality tilted “Restoring Internet Freedom.” 80 Fed. Reg. 19,738 (Apr. Regulation” in the Winter/Spring 2015 issue, “D.C. Circuit Strikes 13, 2015) (codifi ed at 47 C.F.R. 1). The Order fi rst “[r]estor[ed] Down FCC ‘Net Neutrality’ Rules” in the Winter/Spring 2014 the classifi cation of broadband Internet access service as an issue, and “Debates Continue Over Net Neutrality as FCC Nears ‘information service’” as it had been classifi ed prior to the 2015 Decision on ‘Open Internet’” in the Fall 2014 issue.) Order. Second, the Order “[adopted] transparency requirements In its Oct. 1, 2019 per curiam decision, the D.C. Circuit that ISPs disclose information about their practices to grappled with whether the FCC had the authority in 2015 to consumers, entrepreneurs, and the Commission.” Finally, the reclassify fi xed broadband from a telecommunication service, to FCC eliminated the rules preventing blocking, throttling, and paid an information service as it had done in the Restoring Internet prioritization. The rules were published in the Federal Register Freedom Order. A corresponding reclassifi cation applied to on Feb. 22, 2018, though they did not immediately take effect. mobile broadband, now designated as a private mobile service. The repeal faced backlash through legal and legislative efforts, including lawsuits fi led by twenty-two state attorneys Net Neutrality, continued on page 3 Inside This Issue Fall 2019: Volume 25, No. 1 1 D.C. Circuit Upholds Net Neutrality Repeal But Prevents the 19 Social Media Networks, Tech Companies Struggle with FCC from Preempting States' Rules, Remands Key Issues to Misleading Political Advertisements the Agency Political Advertising Cover Story 21 Politicians Continue to Confront Issues in Blocking Social 4 Federal Judge Orders White House to Reinstate Reporter's Media Users; Minneapolis Enacts New Social Media Policy Press Credential First Amendment Access 23 News Organizations and Journalists Face High-Profi le 6 European Union Top Court Rules Search Engines Do Not Defamation Cases Brought by Public Offi cials, Figures Need to Apply the Right to Be Forgotten Globally Defamation Right To Be Forgotten 28 Eighth Circuit and Minnesota State Courts Resolve Notable 8 Trump Administration Targets Two More Leakers of Constitutional Cases Government Information Minnesota Leak Investigations 32 Fifth Judge Orders Release of Warrant Materials Tied 11 The Daily Northwestern Removes Content and Apologizes to Searches of Freelance Journalist's Home, Offi ce, and for Protest Coverage, Faces Backlash Phone Records; Free Speech Group Files Lawsuit Seeking Ethics Additional Records Searches and Seizures 12 Letter Sent on Behalf of President Trump Threatens Legal Action Against CNN, Prompting Criticism 34 Ninth Circuit Rules First Amendment Provides Right of First Amendment Access to Hear the Sounds of Prisoner Executions First Amendment 14 Judge Rules Border Agents Need "Reasonable Suspicion" to Search and Seize Electronic Devices at U.S. Borders 36 Harvard Freshman Allegedly Denied Entry into U.S. Over Borders Friends' Social Media Posts; DHS Proposes Rule Expanding Collection of Social Media Information 16 Legal Action Continues in Cases Stemming from Murder of Social Media Khashoggi and Detention of Duran Ortega; Oregon Offi cials and Trump Supporters Raise Press Freedom Issues 38 34th Annual Silha Lecture Tackles Public and Media Access Reporters in Danger to Court Proceedings and Records Silha Center Events SILHA CENTER STAFF JANE E. KIRTLEY SILHA CENTER DIRECTOR AND SILHA PROFESSOR OF MEDIA ETHICS AND LAW SCOTT MEMMEL SILHA BULLETIN EDITOR JONATHAN ANDERSON SARAH WILEY SILHA RESEARCH ASSISTANT SILHA RESEARCH ASSISTANT ELAINE HARGROVE SILHA CENTER STAFF 2 Net Neutrality, continued from page 1 authority under Title I. He argued that not extending the same The D.C. Circuit fi rst held that the FCC’s reclassifi cation of level of deference to the FCC on the preemption directive broadband internet under Title I of the Telecommunications would undermine the 2018 order by exposing broadband to a Act was “reasonable under Chevron,” fi nding that the FCC patchwork of state regulations, leading to numerous legal battles. “has compelling policy grounds to ensure consistent treatment The full per curiam opinion, as well as the individual of the two varieties of broadband Internet access, fi xed and opinions, are available online at: https://www.cadc.uscourts.gov/ mobile, subjecting both, or neither, to Title II.” In Chevron, internet/opinions.nsf/FA43C305E2B9A35485258486004F6D0F/$fi Inc. v. National Resources Defense Council, Inc., 467 U.S. 837 le/18-1051-1808766.pdf. (1984), the Supreme Court created a two-part test for judicial In a statement following the ruling, FCC Chairman Ajit deference to agency decision making, providing parameters for Pai praised the decision, calling it a “victory for consumers, the federal courts reviewing agency decisions to prevent judges broadband deployment, and the free and open Internet.” He from overriding the agency’s expertise. Under the fi rst step of the continued, “We look forward to addressing on remand the test, the court examines the controlling statute; if the meaning is narrow issues that the court identifi ed.” unambiguous, that meaning is determinative. Under step two of In an Oct. 1, 2019 statement, Gigi Sohn, an adviser to former the Chevron test, if a statute’s meaning is ambiguous, the court FCC Chairman Tom Wheeler, praised the ruling for allowing must uphold any reasonable interpretation states to implement their own net neutrality rules. “The DC of the statute by the agency, thus giving Circuit Court has spoken very clearly — the states are now COVER STORY deference to the agency and its expertise. free to do what the FCC will not — assert authority over the Second, the per curiam decision broadband market and protect an open Internet,” she wrote.